In order to facilitate the reduction of water pollution, states are directed to develop water quality standards, which include both a pollution standard and a designation of the uses of a waterway. See 33 U.S.C. § 1313(a). "Timely adoption by states of water quality standards is enforced by withholding of grant funds." Scott, 741 F.2d at 995 n.7 (citing 33 U.S.C. § 1313a). It may be that the effluent-limitation approach will meet the water quality standard, in that technology-based reduction of the discharge of pollutants into the particular body of water will ensure that the level of pollution in the water will be lower than the established standard. However, if the reductions in effluence is not enough to reach the established water quality standard, the water-quality-based approach must be used. States are required to identify those waters which, taking into account technology-based reductions of pollutant discharge, will fail to meet the water quality standard established for those waters. See 33 U.S.C. § 1313(d)(1)(A)-(B). The states must then prioritize those waters that are identified as failing to meet the standards, and develop water-quality-based controls in order to meet the standard. A water-quality-based control is designed to determine the maximum amount of particular pollutants the water can absorb and still meet the standard, and then to apportion that maximum amount among the various sources of pollution in order to control the pollution.

The water-quality-based approach established by Congress forces the states to study their water bodies, set quality standards, prioritize their water-quality improvement needs, and establish Total Maximum Daily Loads ("TMDLs") for pollutants. The benefit of this approach is that it facilitates the state's ability to meet its water-quality standards by controlling those sources of pollution that are easiest to control. The congressional scheme is not met merely by establishing effluence limits for specific sources, because Congress mandated a comprehensive approach to each body of water's quality standard. Without an understanding of the Total Maximum Daily Load, and the various sources which lower a body of water's quality, there is little chance that the pollution is most efficiently controlled. With the water-quality-based approach, the burden of pollution control can be minimized while maximizing the benefit to the overall quality of the body of water.

Defendants' motion for summary judgment likewise must be denied. The assertions of plaintiffs have created a triable issue of fact regarding which TMDLs specifically have been created, and whether they are adequate under 33 U.S.C. § 1313(d)(2) to prevent the triggering of the EPA's duties by a constructive submission.

The applicable statute of limitations, if any, must be considered in the context of the statutory scheme for enforcement of the Administrator's non-discretionary duties. The statute sets forth mandatory duties of the Administrator; no other body is required by the statute to review submissions of a state or to establish Total Maximum Daily Loads in the event a state submission is disapproved. Therefore, where the Administrator has a duty to review submissions or establish TMDLs beginning on a particular day, with a deadline 30 days later, if the deadline passes without action, the recourse for enforcing the mandatory duty established by the Congress is the citizen suit under section 1365(a)(2). If that mode of enforcement were to be foreclosed by a statute of limitations, the result will be far more than the unfortunate, but necessary foreclosure of rights caused by most statutes of limitations. Most statutes of limitations foreclose the enforcement of rights of general application. When one potential plaintiff loses the right to sue, the rule of law still remains in force. By contrast, where there is only one body charged with a duty by Congress, and that body cannot be forced by the Court to carry out its duty because of a statute of limitations, the practical result is a repeal of the mandatory duty itself. The statute was enacted in order to create a perpetual scheme for protecting the nation's water quality, and does not evince an intent for the mandatory duties of the Administrator to expire after a period of nonfeasance. The Act, like other acts of Congress, can be amended or repealed by subsequent action by Congress and the President. The practical effect of imposing a statute of limitations in a suit such as this is to repeal the mandatory duties established by Congress and the President without the constitutionally prescribed scheme for altering a statute of the United States.

The Administrator has a clear, non-discretionary duty to review and supplement state actions under the Clean Water Act, and it would be perverse to excuse that duty after sustained nonfeasance. To illustrate the drastic result of defendants' proffered statute of limitations: assuming the Administrator's non-discretionary duty to establish TMDLs were triggered on August 25, 1979, the six-year statute of limitations cited by defendants would work a repeal of the mandatory duties of the Administrator on August 25, 1985. Such a result is counter to the intent of Congress in enacting the Clean Water Act. Therefore the Court holds that a citizen suit to enforce a failure by the administrator to perform a non-discretionary duty under 33 U.S.C. § 1365(a)(2) is not subject to any statute of limitations.

Even if laches applied in general, it would not bar plaintiffs' suit here. An equitable action is barred by laches where the defendant establishes "both plaintiff's unreasonable lack of diligence under the circumstances in initiating an action, as well as prejudice from such delay." King v. Innovation Books, 976 F.2d 824, 832 (2d Cir. 1992). Prejudice can either be in the form of a diminished ability to defend against the suit or increased hardship in ordering the requested relief. Defendants have stated no prejudice to their defense of this case. In addition, it is clear that there can be no prejudice to defendants from any delay in bringing the suit, because their duty to review state actions pursuant to the Clean Water Act, and to establish TMDLs where states fail to do so, is no different today than it was initially. The burden of fulfilling this duty also is no greater today than it was initially. Therefore, because there is no prejudice to defendants from the delay in bringing this citizen suit, the action is not barred by the equitable defense of laches.

In sum, with respect to the parties' motions on claims three and four regarding the Administrator's non-discretionary duty to review TMDLs, or to establish TMDLs, the Court finds that there are triable issues of fact requiring that the motion of each party be denied. In addition, the Court finds that the action is timely.

Next the Court must determine whether the approval of the 1992 revision was arbitrary and capricious because it did not contain an antidegradation policy. The EPA interprets 40 C.F.R. § 131.6, which states that an antidegradation policy "must be included in each State's water quality standards submitted to EPA for review," to require only initial water quality standards to meet this requirement, and once an antidegradation policy has been approved, submitted revisions to the water quality standards need not each contain an antidegradation policy. Again the Court finds this interpretation of the relevant regulations, see 40 C.F.R. § 131.1, 131.5-.6, to be reasonable and entitled to deference. Therefore, the Court finds that the approval of the 1992 revisions, despite their omission of any antidegradation policy, was not arbitrary and capricious and shall not be set aside.

Finally, the Court finds that a review of the EPA's 1985 approval of New York's antidegradation policy is barred by the statute of limitations. The Second Circuit has held that the six-year statute of limitations of 28 U.S.C. § 2401 applies to Administrative Procedure Act claims. See Blassingame v. Secretary of the Navy, 811 F.2d 65, 70 (2d Cir. 1987). Although there may be some Administrative Procedure Act claims that would fall outside this rule, see Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (agency decision exceeding constitutional or statutory authority not subject to six-year limitation), this is not one of them, see id. ("If the person wishes to bring a policy-based facial challenge to the government's decision, that . . . must be brought within six years."). Therefore, the Court grants defendants' summary judgment motion with respect to count five, the challenge to EPA's approval of the 1992 submission based on the asserted inadequacy of New York's antidegradation policy.

CONCLUSION

For the reasons stated above, the Court HEREBY DENIES plaintiffs' motion and defendants' motion for summary judgment on claims three and four of the complaint. The Court HEREBY GRANTS defendants' motion for summary judgment on claim five of the complaint. Without objection from either side, the Court also HEREBY DISMISSES claims one and two of the complaint as moot.

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